Mass Incarceration and the “Degree of Civilization”

Incarceration is when a person loses their freedom pending trial or by serving a sentence. Mass incarceration is when millions of people are imprisoned and kept there based on a generation of tough on crime policies.1 Viewed another way, incarceration is a personal problem; mass incarceration is everyone’s problem. And the number of people behind bars, which is higher in the United States than anywhere in the world, creates a ripple effect throughout the criminal justice system and society at large.

The picture of modern prison population concentration might be visualized as three concentric circles. At the core is individual incarceration, someone awaiting trial or serving a sentence; in the next ring are those who have been sentenced to jail or prison, termed “mass imprisonment”; and the outer most ring encompasses everyone who is behind bars for any and all reasons, i.e., mass incarceration. And the “mass” nature of imprisonment might be read broadly to include people travelling through, or languishing in, the transinstitutional pipelines of civil confinement,2Immigration and Customs Enforcement3 and other institutions.4

Prison expansion and growing inmate populations are have been linked to tough on crime policies and crime rates.5 However, mass incarceration (aka hyper incarceration, over-incarceration and more narrowly, mass imprisonment)6 and its causes have been unmoored from these linkages according to recent studies by scholars and analysts.7

Indeed, the responses by legislatures, courts and policy makers to prison overpopulation have resolved into balancing budgets with smart on crime approaches.8 And in some instances the courts have ordered remedies for unconstitutional conditions of confinement arising from overcrowded and dilapidated facilities.9 Indeed, there is a movement afoot to reexamine mass incarceration in terms of sentencing laws,10 monitoring prison conditions,11 exploring alternatives,12 as well as early release and reentry solutions.13

“The degree of civilization in a society can be judged by entering its prisons.”14 Thus the remarkable rise and preeminence of the United States as the world leader in incarceration has inspired intense study of this punishment by many academic disciplines, public interest institutions and government agencies.15 This article focuses on a small portion of recent and notable publications from these sources along with a list of current awareness sites.

BOOKS

Creating the Permanent Prisoner in Life Without Parole: America’s New Death Penalty? (NYU Press 2012) “Of the 2.3 million people currently behind bars in the United States, only 41,000 – a mere 1.7% – are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. In this essay, I [Prof. Sharon Dolovich] argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. Instead, a variety of penal practices combine to ensure against any meaningful loosening of control over the people the state has imprisoned. This essay explores the exclusionary effects of several such practices, including the destructive character of prison conditions, the increasing official reluctance to grant parole, and the collateral consequences of felony convictions, which heavily burden the prospects of newly released offenders. This way of framing American penal policy may seem to inappropriately sideline the more legitimate penological purposes – retribution, deterrence, etc. But there is a strikingly poor fit between these more familiar penological justifications and the actual practices of the penal system. By contrast, the exclusionary account offered in this essay is not only consistent with current penal practice, but also helps to make sense of the pervasive normative conception of prisoners as both noncitizens and nonhumans. This normative construction is a key component of the exclusionary project. If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.”

Downsizing Prisons: How to Reduce Crime and End Mass Incarceration (NYU Press 2006) “Over two million people are incarcerated in America’s prisons and jails, eight times as many since 1975. Mandatory minimum sentencing, parole agencies intent on sending people back to prison, three-strike laws, for-profit prisons, and other changes in the legal system have contributed to this spectacular rise of the general prison population. After overseeing the largest city jail system in the country, Michael Jacobson knows first-hand the inner workings of the corrections system. In Downsizing Prisons, he convincingly argues that mass incarceration will not, as many have claimed, reduce crime nor create more public safety. Simply put, throwing away the key is not the answer.”

Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (Oxford U. Press 2007) “While the effects of going to and returning home from prison are well-documented, little attention has been paid to the impact of removal on neighborhoods where large numbers of individuals have been imprisoned. In the first detailed, empirical exploration of the effects of mass incarceration on poor places, Imprisoning Communities demonstrates that in high doses incarceration contributes to the very social problems it is intended to solve: it breaks up family and social networks; deprives siblings, spouses, and parents of emotional and financial support; and threatens the economic and political infrastructure of already struggling neighborhoods. Especially at risk are children who, research shows, are more likely to commit a crime if a father or brother has been to prison. Clear makes the counterintuitive point that when incarceration concentrates at high levels, crime rates will go up. Removal, in other words, has exactly the opposite of its intended effect: it destabilizes the community, thus further reducing public safety. Demonstrating that the current incarceration policy in urban America does more harm than good, from increasing crime to widening racial disparities and diminished life chances for youths, Todd Clear argues that we cannot overcome the problem of mass incarceration concentrated in poor places without incorporating an idea of community justice into our failing correctional and criminal justice systems.”

Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New Press 2002) “In a series of newly commissioned essays from the leading scholars and advocates in criminal justice, Invisible Punishment explores, for the first time, the far-reaching consequences of our current criminal justice policies. Adopted as part of ‘get tough on crime’ attitudes that prevailed in the 1980s and ’90s, a range of strategies, from ‘three strikes’ and ‘a war on drugs,’ to mandatory sentencing and prison privatization, have resulted in the mass incarceration of American citizens, and have had enormous effects not just on wrong-doers, but on their families and the communities they come from. This book looks at the consequences of these policies twenty years later.”

Mass Incarceration on Trial: America’s Courts and the Future of Imprisonment (New Press 2012) “For nearly forty years, the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading—relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order. In short, mass incarceration has proven to be a fiscal and penological disaster. A landmark 2011 Supreme Court decision, Brown v. Plata, has opened an unexpected escape route from this trap of ‘tough on crime’ politics and points toward values that could restore legitimate order to American prisons and ultimately lead to the dismantling of ‘mass incarceration.’ Berkeley law professor Jonathan Simon—an internationally renowned critic of mass incarceration and the war on crime—argues that, much like the epic school segregation cases of the last century, this new case represents a major breakthrough in jurisprudence. Along with twenty years of litigation over medical and mental health care in California prisons, the 2011 Brown decision moves us from a hollowed-out vision of civil rights to the threshold of human rights. Exposing the priority of politics over rational penal policy—and debunking the premise that these policies are necessary for public safety—this perceptive and groundbreaking book urges us to seize the opportunity to replace mass incarceration with a system anchored in the preservation of human dignity.”

New Jim Crow: Mass Incarceration in the Age of Colorblindness (repr. New Press 2011) “The New Jim Crow is a stunning account of the rebirth of a caste-like system in the United States, one that has resulted in millions of African Americans locked behind bars and then relegated to a permanent second-class status—denied the very rights supposedly won in the Civil Rights Movement. Since its publication in 2010, the book has been dubbed the ‘secular bible of a new social movement’ by numerous commentators, including Cornel West, and has led to consciousness-raising efforts in universities, churches, community centers, re-entry centers and prisons nationwide. The New Jim Crow tells a truth our nation has been reluctant to face.”

Plague of Prisons: The Epidemiology of Mass Incarceration in America (New Press 2011) “When Dr. John Snow first traced an outbreak of cholera to a water pump in the Soho district of London in 1854, the field of epidemiology was born. Taking the same concepts and tools of public health that have successfully tracked epidemics of flu, tuberculosis, and AIDS over the intervening one hundred and fifty years, Ernest Drucker makes the case that our current unprecedented level of imprisonment has become an epidemic—a plague upon our body politic. Drucker, an internationally recognized public health scholar and researcher, spent twenty years treating drug addiction and studying AIDS in some of the poorest neighborhoods of the South Bronx. He compares mass incarceration to other, well-recognized epidemics using basic public health concepts—’prevalence and incidence,’ ‘outbreaks,’ ‘contagion,’ ‘transmission,’ ‘potential years of life lost.’ He argues that imprisonment—originally conceived as a response to individuals’ crimes—has become ‘mass incarceration’: a destabilizing force that undermines the families and communities it targets, damaging the very social structures that prevent crime. This book demonstrates that our unprecedented rates of incarceration have the contagious and self-perpetuating features of the plagues of previous centuries.”

Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders (Oxford U. Press, 2009) “The Politics of Imprisonment seeks to document and explain variation in American penal sanctioning, drawing out the larger lessons for America’s overreliance on imprisonment. Grounding her study in a comparison of how California, Washington, and New York each developed distinctive penal regimes in the late 1960s and early 1970s–a critical period in the history of crime control policy and a time of unsettling social change–Vanessa Barker concretely demonstrates that subtle but crucial differences in political institutions, democratic traditions, and social trust shape the way American states punish offenders. Barker argues that the apparent link between public participation, punitiveness, and harsh justice is not universal but dependent upon the varying institutional contexts and patterns of civic engagement within the U.S. and across liberal democracies.”

Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge U. Press 2006) “The United States has built a carceral state that is unprecedented among Western countries and in US history. Nearly one in 50 people, excluding children and the elderly, is incarcerated today, a rate unsurpassed anywhere else in the world. What are some of the main political forces that explain this unprecedented reliance on mass imprisonment? Throughout American history, crime and punishment have been central features of American political development. This 2006 book examines the development of four key movements that mediated the construction of the carceral state in important ways: the victims’ movement, the women’s movement, the prisoners’ rights movement, and opponents of the death penalty. This book argues that punitive penal policies were forged by particular social movements and interest groups within the constraints of larger institutional structures and historical developments that distinguish the United States from other Western countries.”

Prison Profiteers: Who Makes Money from Mass Incarceration (New Press 2009) “In Prison Profiteers, co-editors Tara Herivel and Paul Wright ‘follow the money to an astonishing constellation of prison administrators and politicians working in collusion with private parties to maximize profits’ (Publishers Weekly). From investment banks, guard unions, and the makers of Taser stun guns to health care providers, telephone companies, and the U.S. military (which relies heavily on prison labor), this network of perversely motivated interests has turned the imprisonment of one out of every 135 Americans into a lucrative business.”

Prison State: The Challenge of Mass Incarceration (Cambridge U. Press 2008) “During the past 25 years, the prison population in America shot upward to reach a staggering 1.53 million by 2005. This 2005 book takes a broad, critical look at incarceration, the huge social experiment of American society. The authors investigate the causes and consequences of the prison buildup, often challenging previously held notions from scholarly and public discourse. By examining such themes as social discontent, safety and security within prisons, and the impact on crime and on the labour market, [Anne Morrison] Piehl and [Bert] Useem use evidence to address the inevitable larger question, where should incarceration go next for American society, and where is it likely to go?”

Racialized Mass Incarceration: Poverty, Prejudice, and Punishment in Doing Race: 21 Essays for the 21st Century (Norton 2010) “This essay maintains that the United States has developed a new, decidedly punitive law and order regime that at its core features racialized mass incarceration. We [Lawrence D. Bobo & Victor Thompson] will show that over the past thirty years the United States has gone on an incarceration binge, a binge that has fallen with radically disproportionate severity on the African American community. The rise of the racialized mass incarceration society is attributable to the simultaneous processes of urban socioeconomic restructuring that produced intensified ghetto poverty and severe social disadvantage and dislocations through the 1980s to the present, on the one hand, and a series of social policy actions (and nonactions) that made jail or prison among the primary responses to urban social distress, on the other hand. During this time, social policy took this deeply punitive turn in substantial measure as a result of the effects of anti-black racism in American culture and public opinion. One result of these circumstances is a serious problem of legitimacy for the criminal justice system in the eyes of many Americans, especially but not exclusively African Americans.”

LAW REVIEWS

Aspiring to the Impracticable: Alternatives to Incarceration in the Era of Mass Incarceration, 33 N.Y.U. Rev. L. & Soc. Change 235 (2009) “In this article, I [Marsha Weissman] argue that while ATI [Alternatives to Incarceration] programming holds promise as part of a criminal justice reform strategy, the full realization of this promise is thwarted by the structure and rules of the criminal justice system itself. More importantly, the legacy of racism in the U.S. and the economic restructuring and abandonment of inner cities, accompanied by an ensuing crisis in employment, fuels the push for mass incarceration as the primary response to crime. In Section I, I look at the development and efficacy of ATI programs. In Section II, I summarize the systemic forces that have combined to create a carceral state that renders alternatives to incarceration peripheral to its operation. In Section III, I offer some reflections about the role of community and grassroots organizing in making ATI approaches more central to crime prevention and control. ATI programs can become more central to efforts to dismantle mass incarceration by (1) reaching people who would otherwise be incarcerated through better gate keeping and advocacy, (2) demonstrating an affirmative commitment to tackle racial disparities in the criminal justice system, and (3) building stronger ties and connections to the communities most affected by mass incarceration.”

Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release, 52 Wm. & Mary L. Rev. 465 (2010) “Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally-deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than 1 of every 100 Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how. Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction.”

Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases, 41 Harv. C.R.-C.L. L. Rev. 339 (2006) “In this Essay, I [Prof. Bryan A. Stevenson] contend that remedial efforts must be made to restore credibility and fairness to collateral post-conviction review in the United States. In Part I, I argue that mass incarceration has created serious obstacles to the reliable administration of criminal justice and overwhelmed post-conviction review mechanisms. In Part II, I identify some of the unjustifiable procedural obstacles that bar prisoner appeals in America and the consequences of these rules. Finally, in Part III, I offer an initial set of recommendations that I believe require serious consideration as America’s new underclass of imprisoned people grows to record levels.”

Consuming Obsessions: Housing, Homicide, and. Mass Incarceration Since 1950, 2010 U. Chi. Legal F. 165 “When we think about the relationship between crime and the economy, the nexus most likely to come to mind is employment. In this Article I [Prof. Jonathan Simon] propose a very different framework for thinking about the economic context of crime–one based on housing. Like the employment-crime nexus, the relationship between housing and crime can point to a multitude of different dynamics, concerning the incentives to commit crimes and the incentives of the public to react to fear of crime. Here, I focus on just one dynamic: many Americans switched from renting to owning their homes during the second half of the 20th century, and this shift, I will argue, made the public more fearful of crime and thus more inclined to support aggressive law-and-order policies. Alongside the well-documented rise in violent crime (homicide in particular) in the early 1960s, the post-WWII trend of suburbanization helped to lay the foundation for ‘mass incarceration.'”

Informational Approach to the Mass Imprisonment Problem, 40 Ariz. St. L.J. 47 (2008) “The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500 percent in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America’s jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a first-time drug offender a twenty-month sentence might instead agree to an eighteen-month plea bargain if she were aware that prisons were overcrowded and incarceration rates were on the rise. A rich body of social psychology literature supports the view that informing prosecutors about mass imprisonment might cause them to offer lower sentences. Legislatures have an incentive to enact such a proposal because a reduction in incarceration would reduce the already huge and escalating costs of criminal corrections. At the same time, because legislatures would simply be instructing that prosecutors be advised of the scale of imprisonment, and not specifically advocating lower sentences, there would be no danger of legislators appearing ‘soft on crime.'”

Jena Six, Mass Incarceration, and the Remoralization of Civil Rights, 44 Harv. C.R.-C.L. L. Rev. 477 (2009) “Mass incarceration ultimately rests on the false assumption that African Americans need to be incarcerated in historically unprecedented numbers because of a moral breakdown in their communities. Crime is assumed to be the product of a basic moral failure in both the individual offender and in the community at large, not the product of any set of social conditions or circumstances. Recent work by sociologists, criminologists, and economists suggests that poor, urban African American communities are not communities whose norms of moral behavior have broken down but communities whose moral norms have come under unprecedented strain. Social science evidence suggests that the residents of the poorest African American urban communities believe deeply in the family and economic values of mainstream American society but are unable to realize those values because of the emergence of a relatively new and concentrated form of jobless poverty during the seventies, eighties and nineties. Mass incarceration is an unnecessary and counterproductive response to crime in a community whose norms of moral behavior remain intact but are badly strained by socioeconomic conditions. Tragically, the pervasiveness of mass incarceration as a social policy confirms its own false premise of moral breakdown among poor African American communities by stigmatizing those communities as essentially criminal.”

Mass Imprisonment, Crime Rates, and the Drug War: A Penological and Humanitarian Disgrace, 9 Conn. Pub. Int. L.J. 17 (2009) “The explosion in our prison population began in 1973, the same year President Nixon declared war on drugs. During the preceding forty years, the prison population was stable at around 200,000. Since 1970, however, the number of people in U.S. prisons and jails has increased 800 percent and our rate of imprisonment, the percentage of the population in prison or jail, is up more than 500 percent. The United States not only has the largest number of people in prison, nearly one fourth of the world’s total prison population, it has the highest rate of imprisonment in the world. There is much speculation about the causes of this mass imprisonment mania, but the mechanisms by which mass imprisonment was accomplished are clear. We have continued to arrest people at about the same rate since l973, but since then we have sentenced those we convict to prison, for much longer terms, with fewer opportunities for parole or early release than in previous years. When we do release someone on parole, we revoke parole and return the parolee to prison more often than we formerly did. That explains how we increased our prison population eightfold; why we did it is less obvious.”

Mass Incarceration: A Contemporary Mechanism of Racialization in the United States, 47 Gonz. L. Rev. 301 (2011) “Mass incarceration dominates the social and economic context of life for millions of African Americans, and continues a historical pattern of structural disadvantage that is defined by race. This article examines the broader consequences of prison expansion by focusing on its contribution to contemporary racial ideologies and structures of economic disadvantage. While other scholars have argued that ideological beliefs about African American criminality have facilitated their disproportionately high rates of imprisonment, this article argues that ideological beliefs about race are also informed by African American men’s disproportionately high rates of incarceration. Mass incarceration produces structures of disadvantage, as economic disparities are magnified along racial lines long after ex-inmates are released. Ultimately, this article develops the idea that mass incarceration operates as a contemporary mechanism of racialization – a structure for continuing social stigma and economic marginalization by race – and illustrates this point by examining the impact of incarceration stigma on labor market exclusion.”

Mass Incarceration and the Paradox of Prison Conditions Litigation, 44 Law & Soc’y Rev. 731 (2010) “In this article I [Prof. Heather Schoenfeld] examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. Drawing on insights from historical institutionalist scholarship, I argue that this paradox can be explained by considering the different historical and political contexts of the initial legal framing and the final compliance with the court order. In addition, I demonstrate how the choices made by policy makers around court compliance created policy feedback effects that further expanded the coercive capacity of the state and transformed political calculations around crime control. The findings suggest how ‘successful’ court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates’ lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.”

New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789 (2012) “The new civil death, loss of equal legal status and susceptibility to a network of collateral consequences, should be understood as constitutional punishment. In the era of the regulatory state, collateral consequences may now be more significant than was civil death in past decades. The actions of judges, defense attorneys, and prosecutors should attend to what is really at stake in criminal prosecutions.”

Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics (SSRN 2012) “This Article explores the legal and political ecosystem in which the Plata order developed and is being implemented. The result illustrates the complex interplay of institutional reform litigation and political outcomes and processes. The Article proceeds in four parts. Part I sets out crucial background how a 1996 anti-prisoners’ rights federal statute, the Prison Litigation Reform Act (PLRA), structures correctional civil rights litigation. Part II paints the litigation history in the district court and the Supreme Court, focusing on the interaction of court procedure and politics — describing, for example, how the litigation promoted a more explicit, open, and elaborate multiparty bargaining process over prison population and criminal justice policy; and how the focus during trial on public safety actually increased prisoners’ rights advocates’ effectiveness outside of litigation. It analyzes Governor Jerry Brown’s “realignment” plan — the state’s response to the Plata/Coleman population order, which shrinks the parole population and shortens parole revocation sentence terms, moves some classes of prisoners from state to county custody, and encourages counties to consider non-incarcerative penalties for crime. Part III looks at one of the key features of the environment in which realignment is being implemented: pre-PLRA jail population court orders, which have been very common in correctional civil rights cases, functioning for decades as county-specific bail and jail sentencing reform mechanisms. Part IV concludes, by examining the prospects of a litigation-focused response to what I call the “hydra risk” — the very real possibility that court intervention could succeed at chopping the head off of unconstitutional conditions of prison confinement in California, only to cause 58 counties to develop unconstitutional conditions of jail confinement. Going forward, it will be a huge challenge for prisoners’ rights advocates to find out what is going on in all the scattered county jails, much less to seek remedies for the problems that may be uncovered. Three types of litigation responses are likely: additional scrutiny of jails in ongoing statewide prison litigation; new jail litigation; and revival of existing but more-or-less orphaned jail cases.”

Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 Cal. L. Rev. 1023 (2011) “What does the 2008 election of Barack Obama to the United States presidency portend for race in America? This Essay uses the tremendous racial disparities in the American crime control system to assess race and racism as key features of contemporary society. The Essay begins by considering a compelling thesis that racialized mass incarceration stems from backlash to the civil rights movement. If true, this raises the possibility that Obama’s election, potentially marking the end of backlash politics, also represents a likely turning point in the war on crime. The Essay then reconsiders mass imprisonment from the perspective of ‘racial stratification,’ a structural theory that emphasizes the simultaneous formation of racial categories and the misallocation of resources between races. A stratification approach leaves one less sanguine about rapid change in American race relations, though without disparaging either the historic nature of Obama’s inauguration or the possibility of incremental improvements in racial justice. Reflecting the continued need to push for positive racial change, the Essay concludes by arguing morally and politically for a renewed focus on racism, in particular on ‘post-racial racism.”

Punishment, Inequality, and the Future of Mass Incarceration, 57 Kan. L. Rev. 851 (2009) “In this Article, we [Bruce Western & Christopher Wildeman] trace the causes, contours, and consequences of the American prison boom. We argue that rapid growth in the penal system was fueled by a punitive turn in punishment and the deteriorating economic situation of black men and men with low levels of education. The explosion in prison and jail populations was felt most acutely by those who were already most disadvantaged – black men and men with low levels of educational attainment and their families. As a result, by the late 1990s, serving time in prison had become commonplace for young black men who had never been to college. For these same men’s wives, girlfriends, and children, contact with the penal system has also become common in the last ten years.”

Punishment Politics: Gubernatorial Rhetoric, Political Conflict, and the Instrumental Explanation of Mass Incarceration in the American States (SSRN 2011) “The tension created by the drop in violent crime and the sustained increase in mass incarceration in the American states represents a phenomenon of great theoretical and policy relevance. Previous accounts of that tension have centered on theories of group conflict and instrumentalism. We argue here that the use of aggressive political rhetoric by state governors to communicate the crime problem is an important correlate of mass incarceration boom. Using data derived from content analysis of state-of-the-state addresses of governors from all 50 states, we test this rhetoric theory and evaluate its implications alongside instrumental and conflict-based explanations of mass incarceration. We find that gubernatorial rhetoric has strong effect on mass incarceration but that this effect is moderated by the institutional power of the governor. Instrumentalism is not supported. The key implication of our findings is that mass incarceration is overwhelmingly a policy consequence of the punitive political rhetoric employed by state leaders to exploit the crime problem and mobilize political support.”

Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21 (2012) “In the last decade, a number of scholars have called the American criminal justice system a new form of Jim Crow. These writers have effectively drawn attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals. This Article argues that despite these important contributions, the Jim Crow analogy leads to a distorted view of mass incarceration. The analogy presents an incomplete account of mass incarceration’s historical origins, fails to consider black attitudes toward crime and punishment, ignores violent crimes while focusing almost exclusively on drug crimes, obscures class distinctions within the African American community, and overlooks the effects of mass incarceration on other racial groups. Finally, the Jim Crow analogy diminishes our collective memory of the Old Jim Crow’s particular harms.”

Realignment of Incarcerative Punishment: Sentencing Reform and the Conditions of Confinement, 38 Wm. Mitchell L. Rev. 1313 (2012) “Part I of this article begins with a review of the state of incarceration as viewed through the lens of prison populations. Then in Part II, the Supreme Court’s watershed decision in Brown v. Plata is explored, along with an analysis of its justifications for upholding a mass release order to remedy the inadequate medical and mental health facilities in an overcrowded state prison system. Part III describes California’s novel choice of realignment legislation to comply with this order as a legislative approach that does not result in mass release but rather a mass redirection of incoming offenders away from state prisons and into the local corrections system. The potential for criminal sentencing reform inspired by the Court’s decision and the state’s realignment policy are further explored in Part IV, which examines past and present efforts to fine-tune incarcerative sentencing outcomes mindful of the conditions of confinement. Finally, additional suggestions for uncovering and taking into account the conditions of confinement as an aid to reform are considered at different points along the adjudication spectrum.”

Reality-Challenged Philosophies of Punishment, 95 Marq. L. Rev. 1203 (2012). “This paper, derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as ‘mass incarceration.’ Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world. More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration. Thus, I [Robert Weisberg] pose the general question of in what sense philosophies of punishment should be ‘accountable’ for the facts of the real world. Did academic retributivism influence the rise of political retributivism as a force behind our increased reliance on prison? Can retributivism justify the arguably disproportionate penalties imposed on prisoners, once we take lifetime economic disruption and wider metastatic effects into account? Or should retributivists criticize modern imprisonment precisely because it does not survive retributivist scrutiny, or, in light of those facts, does it need to revise its notions of desert and penalty? In addition, I ask whether deterrence theory or incapacitation theory can explain or justify the state of imprisonment, and whether rehabilitation is a meaningful concept in a world where the experience of imprisonment probably does nothing to reduce future crime except by incapacitating inmates until they are too old to be dangerous. Overall, I argue that philosophies of punishment must engage in some dialectical self-scrutiny at a time of our incarceration anomaly.”

Reducing Mass Incarceration: Implications of the Iron Law of Prison Populations, 3 Harv. L. & Pol’y Rev. 307 (2009) “In this Essay, we [Todd R. Clear & James Austin] make three points. First, we show why the link between incarceration rates and crime rates is not as great as many policymakers presume. We do so in order to make the case that an aggressive program to reduce prison populations can proceed without a substantial negative impact on public safety. We then describe the iron law of prison populations. Finally, taking advantage of this iron law, we propose a set of penal changes that, if implemented, would cut the correctional population roughly in half and return the prison system to an incarceration rate similar to that of almost thirty years ago–before the trend toward mass incarceration picked up steam. These changes would reverse the trend with limited impact on public safety. We begin the Essay by explaining why.”

Reflections on the Origins and Implications of Mass Imprisonment in the United States, 44 J. Cath. Leg. Stud. 411 (2005) “For the first seventy-two years of the 20th Century, imprisonment rates in the United States were notable for their general stability. During the period from 1925 to 1973, the average number of prisoners was approximately 110-120 per 100,000, never varying by more than 30% up or down from that. Indeed, the lowest reported imprisonment rate of the 20th Century was achieved in 1972 when 93 per 100,000 Americans were serving sentences in the nation’s jails and prisons. In raw numbers, there were 330,000 American prisoners thirty years ago. Fast-forwarding thirty years, we find that the U.S. imprisonment rate has grown every year since 1972. The most recent reports published by the Bureau of Justice Statistics indicate that the number of prisoners has reached 2.23 million. This translates to one of every 143 U.S. residents, or to an imprisonment rate of 726 per 100,000. In only three decades the United States has moved from being a nation with an imprisonment rate not dramatically different from other western nations, to being the global imprisonment leader. This brief paper will address three questions that are important to explore when attempting to understand the unprecedented number of prisoners in the United States. First, what triggered the increase in the use of imprisonment? Second, what are the contemporary dynamics of prison growth in the United States? And third, what are the implications of mass imprisonment for poverty and social justice?”

Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271 (2004) “The mass incarceration of African Americans coincides with a new era in criminal justice research. Social scientists are increasingly applying empirical methods to understand the impact of crime control policies and to supply data to judges, legislators, and policymakers. The distinctive features of African American mass incarceration have generated a new research agenda that reframes the typical questions asked about the racial disparity in imprisonment and that better measures the costs and benefits of prison policy. The new research also puts in striking relief the question of the morality of confining so many American citizens. In the rest of this Introduction, I [Prof. Dorothy E. Roberts] describe the distinctive features of both African American mass incarceration and the new direction in prison research examining this phenomenon. I also discuss how these empirical studies reframe the issue of racial discrimination in the criminal justice system. Part I identifies three theories that explain the social mechanisms through which mass incarceration inflicts community-level harms. Part II argues that mounting evidence of mass imprisonment’s damage to African American communities should change the outcome of dominant deliberations about the moral justifications for current penal approaches to punishment. This evidence demolishes utilitarian claims that high incarceration rates uniformly benefit black communities and reveals, to the contrary, how they entrench black communities’ political subordination. I conclude, therefore, that the mass incarceration of African Americans is not only morally unjustifiable, but morally repugnant.”

War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012) “This Article argues that the best way to understand incarceration growth is to consider the growth in three distinct time periods. Using this framework, both the aggregate state-level analysis and the case study of Florida demonstrate that while the war on drugs was the main cause of incarceration growth in the initial period, a change in prosecutors’ abilities to secure convictions for a variety of offenses, an increase in the time served for all inmates, and (to a lesser extent) an increase in use of incarceration for parole violations and DUI, weapons, and ‘other’ offenses better explains the continued growth in incarceration rates. Importantly, however, the case study demonstrates that mass incarceration was predicated upon the war on drugs. This suggests that racialized public policy – in the form of the war on drugs – has had a prolonged and lasting negative impact on substantive justice.”

Why Care About Mass Incarceration?, 108 Mich. L. Rev. 993 (2010) “The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’sLet’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences — including being prosecuted for a crime himself — eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing America’s reliance on prisons, and suggests that these changes are in the nation’s collective self-interest. This Review contrasts Butler’s prudential arguments against mass incarceration with the moral arguments advanced by critics such as Glenn Loury, who emphasize the disproportionate numbers of poor people and racial minorities in our prison population. Building on Butler’s approach, the Review identifies additional aspects of our criminal justice system — including aggressive policing of minority youth and criminogenic prison conditions — whose harms extend beyond the direct victims (young people and prisoners) and imperil us all.”

Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History, J. Am. Hist., Dec. 2010, at 703 “This essay will suggest, for example, that to understand why so many prosperous American cities became centers of poverty and pessimism during the postwar period—to fully locate the origins of urban crisis—we must reckon with the extent to which postwar urban spaces were compromised by the mass incarceration of the later twentieth century. Likewise, to make sense of why the American labor movement declined so dramatically after the 1970s, we must explore the significant changes to the law and the economy that accompanied mass incarceration—changes that directly and indirectly eroded the bargaining power and economic security of America’s free-world work force. And finally, if we hope to sort out why the politics of postwar liberalism waned over this period, we must realize that the nation’s rightward shift had more to do with mass incarceration than we have yet appreciated and less to do with rising crime rates and the political savvy of the Republican party than we have long assumed.”

SYMPOSIA

Mass Incarceration: Uncoupling Pipelines to Prison (ABA Sect. Litig. 2012 Ann. Conf. Apr. 18-20, 2012) “America incarcerates more people than any other country. The massive prison population has taken a terrible toll on families and communities, and has diverted dollars from other essential services. The panel will discuss programs, such as the justice reinvestment initiative to reduce the number of people behind bars.” [Program Description]

Symposium: Confronting the Costs of Incarceration, Harv. L. & Pol’y Rev., Vol. 3:2 (2009) “The contributions to this symposium focus on the criminal justice component of the puzzle. Considering different aspects of the issue—judicial discretion, sentencing policy, and the risk factors for criminal conduct—these essays together explain how we have found ourselves with so many people in prison (over 2.3 million at last count) and suggest how we might reverse this trend.”

Symposium: Mass Incarceration: Causes, Consequences, and Exit Strategies, Ohio St. J. Crim. L., Vol. 9:1 (2011) “In addressing the phenomenon of what many now call ‘mass incarceration,’ three central questions present themselves: 1) Why did this change occur? Can we identify the causes of this massive shift in our criminal punishment practices? 2) What has this change wrought? What are the consequences of mass incarceration for American society? 3) How can we reverse course? Are there plausible exit strategies and alternatives? To answer these questions, I [Prof. Carol Steiker] have assembled an erudite and diverse group of scholars who offer a variety of perspectives. Though their analyses sometimes diverge or conflict, all of the contributors agree that mass incarceration represents both a momentous change and an unfortunate or even disastrous one. In what follows, I will briefly sketch their arguments and highlight points of convergence and divergence.”

Causes and Consequences of High Rates of Incarceration (The National Academies) “An ad hoc panel will conduct a study and prepare a report that will focus on the scientific evidence that exists on the use of incarceration in the United States and will propose a research agenda on the use of incarceration and alternatives to incarceration for the future. The study will explore the causes of the dramatic increases in incarceration rates since the 1970s, the costs and benefits of the nation’s current sentencing and incarceration policies, and whether there is evidence that alternative punishments might achieve similar public safety benefits at lower financial and social costs.” [Project Duration: “The approximate start date for the project is January 1, 2012. A report will be issued at the end of the project in approximately 24 months.”]

Challenge of Mass Incarceration in America (Academy of Arts and Sciences) “This study examined the scope of mass incarceration, its political and economic significance, and its social impact, weighing the concerns about crime control, rehabilitation, and more fundamental issues of social justice. The Academy created this task force to develop increased understanding of this issue and to promote public discussion. Members of the task force developed the Summer 2010 issue of Daedalus. The project also sponsored a series of roundtable discussions, bringing together stakeholders who do not normally have an opportunity to gather, including representatives of the criminal justice community, policy makers, community activists, and practitioners working with formerly incarcerated individuals. These meetings provided an opportunity for these groups to exchange ideas in a neutral setting and to learn from one another’s experiences.”

Challenging the Consequences of Mass Incarceration Clinic (Columbia Law School) “Challenging the Consequences of Mass Incarceration is a clinic that will focus on litigation in federal court and resolution of claims related to prisoners’ conditions of confinement. Students will visit clients in state and federal prisons where they will interview, counsel and develop strategies. In collaboration with non-profit organizations and small civil rights law firms and subject to the law student intern rules, clinic students will litigate issues identified by the clients.” See Mass Incarceration Clinic.

Criminal Justice and Mass Incarceration (Center for Constitutional Rights) “Since our inception in the 1960’s, when our attorneys defended protestors at the Chicago Democratic National Convention, CCR has been at the forefront of criminal justice issues such as mass incarceration, jail expansion, and challenging unjust detentions. In a country that puts more people in jail than any other country in the world, we will continue to fight the mass incarceration of millions in our nation’s prison system, as well as challenge practices such as racial profiling, immigrant detention, and discriminatory laws that lead to a disproportionate number of people of color behind bars.”

REPORTS

At America’s Expense: The Mass Incarceration of the Elderly (ACLU 2012) “At America’s Expense compiles extensive data detailing epidemic of aging prisoners in the United States. It provides a comprehensive 50-state and federal analysis of the unnecessary incarceration of aging prisoners and provides a fiscal analysis showing the actual amount states would save, on average, by releasing aging prisoners: over $66,000 per year per released prisoner. The report also includes new data showing that the elderly population is growing because of harsh sentencing laws and not because of new crimes, as well as data highlighting the low public safety risks posed by elderly prisoners. At America’s Expense supplies detailed and practical legislative solutions that states and the federal government can implement to address the dramatic and costly growth in the number of elderly prisoners without putting communities at risk.”

Banking on Bondage: Private Prisons and Mass Incarceration (ACLU 2011) “The imprisonment of human beings at record levels is both a moral failure and an economic one — especially at a time when more and more Americans are struggling to make ends meet and when state governments confront enormous fiscal crises. This report finds, however, that mass incarceration provides a gigantic windfall for one special interest group — the private prison industry — even as current incarceration levels harm the country as a whole. While the nation’s unprecedented rate of imprisonment deprives individuals of freedom, wrests loved ones from their families, and drains the resources of governments, communities, and taxpayers, the private prison industry reaps lucrative rewards. As the public good suffers from mass incarceration, private prison companies obtain more and more government dollars, and private prison executives at the leading companies rake in enormous compensation packages, in some cases totaling millions of dollars.”

Corrections (BJS) “Corrections refers to the supervision of persons arrested for, convicted of, or sentenced for criminal offenses. Correctional populations fall into two general categories: institutional corrections and community corrections. Corrections data, with a few exceptions, covers adult facilities and adult inmates. For data on youth in the juvenile system, please see statistics provided by the Correctional Populations in the United States series. The Bureau of Justice Statistics’ (BJS) Corrections Unit maintains over 30 data collections. Most are annual collections of administrative data from correctional administrators, ranging from basic population counts and offender demographic characteristics to facility capacity, programs, staff, and resources.”

Cruel and Unusual Punishment: U.S. Sentencing Practices in a Global Context (U. San Francisco Sch. of Law 2012) “The report, ‘Cruel and Unusual: U.S. Sentencing Practices in a Global Context,’ compiles comparative research on sentencing laws around the globe and documents how sentencing laws distinguish the United States from other countries. Researchers found that the United States is in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government. Conversely, sentencing practices promulgated under international law and used around the world, such as setting 12 as the minimum age of criminal liability and retroactive application of sentencing laws that benefit offenders, are not systematically applied in the United States. Mandatory minimum sentences for crimes and ‘three strikes’ laws are used in the U.S. more widely than elsewhere in the world.”

Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates’ Time in Prison (GAO 2012) “The Department of Justice’s Federal Bureau of Prisons (BOP) is responsible for the custody and care of federal offenders. BOP’s population has increased from about 145,000 in 2000 to about 217,000 in 2011 and BOP is operating at 38 percent over capacity. There is no longer parole for federal offenders and BOP has limited authority to affect the length of an inmate’s prison sentence. BOP has some statutory authorities and programs to reduce the amount of time an inmate remains in prison, which when balanced with BOP’s mission to protect public safety and prepare inmates for reentry, can help reduce crowding and the costs of incarceration. GAO was asked to address: (1) the extent to which BOP utilizes its authorities to reduce a federal prisoner’s period of incarceration; and (2) what factors, if any, impact BOP’s use of these authorities. GAO analyzed relevant laws and BOP policies; obtained nationwide data on inmate participation in relevant programs and sentence reductions from fiscal years 2009 through 2011; conducted site visits to nine BOP institutions selected to cover a range of prison characteristics and at each, interviewed officials responsible for relevant programs; and visited four community-based facilities serving the institutions visited. Though not generalizable, the information obtained from these visits provided insights.”

One in 100 (Pew Center on the States 2008) “A 2008 report by Pew’s Public Safety Performance Project detailed how, for the first time in history, more than one in every 100 adults in America were in jail or prison—a fact that significantly impacts state budgets without delivering a clear return on public safety.”

Overcriminalization and Excessive Punishment: Uncoupling Pipelines to Prison (2011 Workshop Yale Law School) “A task ahead is determining the causes of this nation’s fixation with incarceration. Is it an addiction? There is much to suggest that the answer is yes. As the number of those incarcerated continues to grow, the satisfying benefits decrease. But is the explanation more mundane? Is the number of incarcerated individuals growing from momentum fueled not by addiction but by indifference? Do most Americans know the incarceration rates? Do they know that for African-American males born between 1940 and 1949 the lifetime odds of being incarcerated are 10.4%, but for the next generation the lifetime odds are 26.8%? Most Americans probably don’t know these sobering statistics. But even if they did, would they care? Our country has demonstrated over and over again that it will fight for what it values, that it will press for change it deems essential, but that it will turn a blind eye to realities of no concern. The most wonderful news is that voices from across the political spectrum are beginning to speak out in favor of greater attention to this issue – if not for moral or social reasons, then for economic ones. Incarcerating those with whom we are angry is just too costly to sustain. Let us hope the momentum builds. Its logic and appeal are compelling.”

Prison Count 2010 (Pew Center on the States 2010) “As of January 2010, there were 1,404,053 persons under the jurisdiction of state prison authorities, 4,777 fewer than on December 31, 2008.This marks the first year-to-year drop in the nation’s state prison population since 1972. While the study showed an overall decline, it revealed great variation among jurisdictions. The prison population declined in 26 states, while increasing in 24 states and in the federal system.”

Public Opinion on Sentencing and Corrections Policy in America (Pew Center on the States 2012) “As part of the Public Safety Performance Project’s work with states to improve public safety and control corrections costs, we collaborated with two of the nation’s leading polling firms, The Mellman Group and Public Opinion Strategies, to explore public opinion on sentencing and corrections issues across the country.”

Reducing the Use of Imprisonment? What We Can Learn From Europe (CJA 2012) “The aim of this paper is to look at features of the criminal justice systems in operation in these countries and to analyse changes in prison numbers in order to see whether any lessons might usefully be considered in England and Wales. There is a particular focus on Germany and the Netherlands as these are countries which share certain similarities with the UK. All three are highly urbanised countries with a GDP per capita well above the EU average, although the UK has recently had higher rates of unemployment and a higher proportion of citizens at risk of poverty and leaving education early than either the Netherlands or Germany. Spending on courts, prosecution and legal aid is similar in the UK and Netherlands, and trust in justice institutions is broadly comparable. Both Labour and the Conservatives have looked to the Netherlands for some of their ‘welfare to work’ agendas. A recent study by the National Audit Office drew attention to ‘the potential benefit of conducting more research into prison population trends in other countries in order to learn lessons from those with declining prison populations’. This briefing seeks to identify some of those lessons.”

Time Served: The High Cost, Low Return of Longer Prison Terms (Pew Center on the States 2012) “Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars. Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.”

NEWS INVESTIGATIONS

Alabama Prison Violence Rising in Overcrowded System, Birmingham News, June 3, 2012 “Violence has become a growing concern in Alabama’s prisons, an analysis of incident data shows, and prison officials and other experts fear it could become an even bigger problem next year when the system’s overpopulated facilities will be operated on even less money.”

Arizona Prison System Sees High Number of Deaths, Arizona Republic, June 2, 2012 “Arizona’s prison system has two death rows. One is made up of the 126 inmates officially sentenced to death — 123 men at the Eyman state prison in Florence and three women at Perryville. Seven convicted killers from that group have been executed over the last two years. The other death row, the unofficial one, reaches into every prison in Arizona’s sprawling correctional system. No judge or jury condemned anyone in this group to death. They die as victims of prison violence, neglect and mistreatment. Over the past two years, this death row has claimed the lives of at least 37 inmates, more than five times the number executed from the official death row. Among them are mentally ill prisoners locked in solitary confinement who committed suicide, inmates who overdosed on drugs smuggled into prison, those with untreated medical conditions and inmates murdered by other inmates. Unlike state executions, these deaths rarely draw much notice. Each receives a terse announcement by the Department of Corrections and then is largely forgotten. But correctional officers and other staff who work with inmates say many of these deaths are needless and preventable. Arizona will spend $1.1 billion this year to lock up its 40,000 prisoners. But there is another cost, one measured not in dollars but in human lives. Over four days, an Arizona Republic investigation will reveal a prison system that houses inmates under brutal conditions that can foster self-harm, allows deadly drugs to flow in from the outside, leaves inmates to die from treatable medical conditions and fails to protect inmates from prison predators.”

Land of the Free: The Best Investigative Reporting on U.S. Prisons, Pro Publica, June 29, 2012 “The U.S. has the highest reported incarceration rate in the world. We’ve rounded up some of the best investigative journalism on U.S. prisons and the problems that plague them. These stories cover juvenile justice, private prisons, immigration detention and other aspects of America’s vast incarceration system.”

Louisiana Incarcerated: How We Built the World’s Prison Capital, Times-Picayune Special Report, May 13-20, 2012 (8 part series) “Louisiana has more citizens in prison than anywhere else in the world. A New Orleans Times-Picayune team of reporters led by Cindy Chang along with photographer Scott Threlkeld investigates why.”

States Take Sizeable Steps in 2012 to End Overincarceration, ACLU Blog, June 4, 2012 “As states begin to realize that they can reduce their prison populations safely, the pace of reform has begun to pick up a bit this year. State legislative sessions are coming to a close, which makes it a good time to review the actions lawmakers have taken to reduce their unsustainable prison populations in 2012. Here are the some of the legislative reform highlights.”

AMERICAN LAW REPORTS

Conditions Relating to Placement of More Than One Prisoner per Cell as Violation of Inmates’ Federal Constitutional Rights, 85 A.L.R. Fed. 308 “This annotation collects and analyzes the federal cases in which the courts have discussed or determined whether conditions resulting from the placement of more than one jail or prison inmate per cell constitutes a violation of the inmate’s federal constitutional rights.”

Length of Sentence as Violation of Constitutional Provisions Prohibiting Cruel and Unusual Punishment, 33 A.L.R.3d 335 “Without attempting to exhaust the relevant cases, this comment deals with the question of when the length of a sentence violates federal and state constitutional provisions expressly prohibiting cruel and unusual punishment.”

Mandamus, Under 28 U.S.C.A. S 1361, to Obtain Change in Prison Condition or Release of Federal Prisoner, 114 A.L.R. Fed. 225 “This annotation collects and analyzes the federal cases in which the courts have determined whether, and under what circumstances, a federal prisoner may find relief under the federal mandamus statute (28 U.S.C.A. S 1361) so as to require the amelioration or termination of impermissible conditions of imprisonment, or to require the release of the complaining prisoner where the imprisonment itself is alleged to be in violation of a duty owed the prisoner. Also included in the annotation are allegedly ministerial duties, performance of which will not of itself result in immediate release of the complaining prisoner, but that, like the crediting of ‘good time,’ will necessarily result in an earlier release date for the prisoner, and that may thus be regarded as leading or contributing to such release.”

Prison Conditions as Amounting to Cruel and Unusual Punishment, 51 A.L.R.3d 111 “This comment collects and analyzes illustrative decisions in which the courts have addressed themselves to the question of what particular conditions of confinement will, individually or in combination, subject prison inmates to cruel and unusual punishment in violation of either the Eighth Amendment to the United States Constitution or a similarly worded state constitutional or statutory provision.”

Propriety and Construction of “Totality of Conditions” Analysis in Federal Court’s Consideration of Eighth Amendment Challenge to Prison Conditions, 85 A.L.R. Fed. 750 “This annotation collects and analyzes the federal cases in which the courts have discussed or determined whether, or under what circumstances, it is proper to apply a totality of conditions or circumstances analysis in a federal court’s consideration of a challenge to the conditions of confinement in a prison, as a violation of the right to be free from cruel and unusual punishment secured by the Eighth Amendment to the Constitution, and the construction applicable to the totality of conditions analysis.”

Relief Under Federal Civil Rights Acts to State Prisoners Complaining of Denial of Medical Care, 28 A.L.R. Fed. 279 “This annotation collects and analyzes those federal cases involving civil actions brought under the Federal Civil Rights Acts which deal with the question whether and under what circumstances relief thereunder may be available to state prisoners complaining of denial by prison officials of medical care.”

INFOGRAPHICS

Combating Mass Incarceration (ACLU 2011) “The war on drugs has helped make the U.S. the world’s largest incarcerator. America’s criminal justice system should keep communities safe, treat people fairly, and use fiscal resources wisely. But more Americans are deprived of their liberty than ever before – unfairly and unnecessarily, with no benefit to public safety. Especially in the face of economic crisis, our government should invest in alternatives to incarceration and make prisons options of last – not first – resort.”

Interactive Map of State Incarceration Rates (Sentencing Projects) “Roll over a state to see statistics. Click on a state to lock data into the display. Then, click “compare states” to view side by side with national data or another state.”

Trends in U.S. Corrections (Sentencing Project) This “is a visual tool that provides a compilation of key developments in the criminal justice system over the past several decades.”

2 See Brad Health, Sexual Predators Rarely Committed Under Justice Program, USA Today, March 19, 2012 (“Six years ago, the federal government set out to indefinitely detain some of the nation’s most dangerous sex offenders, keeping them locked up even after their prison sentences had ended. But despite years of effort, the government has so far won court approval for detaining just 15 men. Far more often, men the U.S. Justice Department branded as ‘sexually dangerous’ predators remained imprisoned here for years without a mandatory court hearing before the government was forced to let them go, a USA TODAY investigation has found. The Justice Department has either lost or dropped its cases against 61 of the 136 men it sought to detain. Some were imprisoned for more than four years without a trial before they were freed.”); Adam Liptak, Extended Civil Commitment of Sex Offenders Is Upheld, N.Y. Times, May 17, 2010 (“In a broad endorsement of federal power, the Supreme Court on Monday ruled that Congress has the authority under the Constitution to allow the continued civil commitment of sex offenders after they have completed their criminal sentences.”).

3 See Immigration Detention (ACLU)(“Immigration detention in the United States has reached crisis proportions. Over the last 15 years, the detention system more than quintupled in size, growing from less than 6,300 beds in 1996 to the current capacity of 33,400 beds. In 2010, the Department of Homeland Security (DHS) held 363,000 immigrants in detention in over 250 facilities across the country.”).

5 See United States v. Gregg, 435 Fed. Appx. 209, 218-219 (4th Cir. 2011)(“This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison. He is not alone: the United States currently has the highest rate of incarceration in the world. . . . This staggering incarceration rate is traceable to the so-called ‘War on Drugs,’ which began in 1971 and picked up steam in the mid-1980s, when Congress decided to get ‘tough’ on drug-related crime by imposing lengthy mandatory minimum prison sentences for offenders convicted of participating in the illegal drug trade. . . . The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure. (citations omitted)).

6 See Jonathan Simon, Chp 1 Mass Incarceration: From Social Policy to Social Problem in The Oxford Handbook of Sentencing and Corrections (Oxford University Press 2012) at 27-28 (“The phrase ‘mass imprisonment’ was coined by David Garland (2001b) in 2000 to describe the distinctive expansion of imprisonment in the United States between 1975 and the late 1990s. To Garland, mass imprisonment constituted a new regime of penality that differed along two dimensions from varying policies of imprisonment in use by modern societies since the end of the eighteenth century. First, U.S. imprisonment rates in the late 1990s marked a substantial departure from historic norms for the scale of imprisonment during the twentieth century by several magnitudes (Zimring and Hawkins 1991). Second, in contrast to a history of using imprisonment against individuals based on crime and criminal history, contemporary mass imprisonment reflected a ‘systematic imprisonment of whole groups of the population’ (Garland 2001b, 2; Feeley and Simon 1992 ). The conceptualization of mass imprisonment has been adopted by many other contemporary criminologists (Western 2006; Clear 2008 ). It has also been criticized on a number of grounds. For some, the term is inherently political rather than scientific, embodying a normative perspective on the social value of contemporary imprisonment. For others, the concept falsely implies that the risk of incarceration is evenly distributed in society, while it is clear that some demographic categories, particularly African American and Latino males, especially those without high school graduation, are incarcerated at dramatically higher rates than similarly situated whites (Wacquant 2009 ). Loic Wacquant has argued that the term ‘hyper incarceration’ could better capture the dramatic change in the scale of imprisonment without implying a false equality of incarceration risk. However, the term ‘mass imprisonment’ need not be misleading, and it captures an important degree to which incarceration risk has been generalized”).

7 See United States v. Bannister, 786 F. Supp. 2d 617, 651 (E.D.N.Y. 2011)(“While the movement to mass incarceration was prompted largely by concerns with violent crime, much of its focus is on nonviolent activities, particularly drug offenses. . . .Today’s high incarceration rate bears little relationship to the prevalence of crime. ‘[T]he crime decline of the 1990s did coincide with a large increase in the prison population. But the large crime increase during the preceding period coincided with an even bigger jump in imprisonment, and incarceration rates continued to climb after 2000 even though crime rates were relatively static[.]’ Cook & Ludwig, supra, at 64 (emphasis in original).” (citations omitted)).

8 See Bannister, 786 F. Supp. 2d at 655(“Much of the cost of incarceration is due to the imprisonment of nonviolent offenders. If the number of such inmates were cut in half, taxpayers would be saved an estimated $16.9 billion annually.” (citation omitted)); David Keene, Mollohan and Keene: Left and Right Agree on Criminal Justice Reforms, Wash. Times, Aug. 15, 2012 (“The Senate Judiciary Committee recently held a hearing to address rising prison costs. It’s promising that Congress is talking about the issues, but the time for talk is over — it is time for Congress to act, and it should look to states for the road map. In several states, legislators have crossed the aisle to build consensus and enact reforms on a bipartisan basis, easily outpacing the federal government. In tough-on-crime Texas, the Republican chairman of the state House Corrections Committee worked with the Democratic chairman of the Senate Criminal Justice Committee to shepherd through legislation in 2007 that increased drug treatment capacity and expanded diversion from prison for nonviolent, low-level offenders. Similarly, the Georgia legislature unanimously passed a bill this year that diverts low-level offenders away from prison and, when appropriate, into drug treatment, reserving prison for dangerous offenders. States such as Kansas, South Carolina and Ohio have enacted similar legislation.”).

9 See, e.g., Brown v. Plata, 131 S.Ct. 1910, 1923 (2011)(“Overcrowding [in California state prisons] has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the ‘primary cause of the violation of a Federal right,’ 18 U.S.C. S 3626(a)(3)(E)(i), specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights. The order of the three-judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed.”); Paige St. John, California Unlikely to Meet Prison Crowding Reduction Requirement, Los Angeles Times, Aug. 12, 2012 (“California’s progress in relieving its teeming prisons has slowed so much that it probably won’t comply with a court-ordered population reduction, and judges have raised the prospect of letting some inmates out early.”).

10 See Principles of Effective State Sentencing and Corrections Policy (NCSL 2011); Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (2010)(“While the criminal justice system as a whole provides some deterrent effect, a key question for policy development regards whether enhanced sanctions or an enhanced possibility of being apprehended provide any additional deterrent benefits. Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits. This briefing paper provides an overview of criminological research on these relative impacts as a guide to inform future policy consideration.”).

12 See, e.g., Mike Ward, Texas Prison Population Shrinks as Rehabilitation Programs Take Root, The Statesman, Aug. 11, 2012 (“Instead of sending more and more lawbreakers to prison, judges in Texas and other states are increasingly sentencing them to alternative treatment and rehabilitation programs that have proven more effective — and that cost much less.”).

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